Jason Roberts v Resource Australia Transport (U2013/15752)  FWC 4411, Hamberger, SDP
In this matter the applicant thought he was wrongly dismissed because his employer because his employer sacked him for:
- Engaging in a conflict of interest by being involved in establishing a competing business;
- Taking sick leave while driving a truck for a competitor;
- Misappropriating a cash payment of $3,303.50; and some of the respondent’s product.
In considering all of the facts, the SDP found against the applicant, stating (in part):
“First, I am satisfied that on 28 October 2013 the applicant told his employer that he would not be coming into work that day because he was sick. In fact, he took the day off to do some work for Elite Haulage. Abuse of sick leave in this manner is grounds for termination of employment (my emphasis). In this case, the misconduct is aggravated because it was linked to the second instance of misconduct, namely that the applicant was closely involved in establishing and operating a business in competition with that of his employer. This was inconsistent with his duty of fidelity and good faith to the respondent. Mr Kosutar had brought his concerns to the attention of the applicant who simply denied them. The applicant was dishonest to his employer about his relationship with Elite Haulage.”
And further, in relation to “Prior Warning” requirements: “This criterion is not relevant as the dismissal was related to misconduct, not unsatisfactory performance.”
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